judicial proceeding. We had thought of it as thoroughly established that this proceeding was to be one in which the controversy was first carefully limited and formulated in order to hold the magistrate down rigidly to those aspects which were legally significant; that it was to be one in which the issues thus defined were investigated by a rational mode of trial at a public hearing, in which each party was to have a full opportunity both of making his own case and of knowing and meeting, if he might, the case asserted against him, and that it was to be one in which, when the issues of fact had been determined, a decision was reached by the reasoned application of rules, of law enacted in advance, or of principles deduced by a known technique of judicial reasoning from the experience of deciding causes in the past. But times change and laws as well as manners change with them.

In 1911 one Arlidge, the owner of a house in the borough of Hampstead in England, found that his house had been closed to human habitation by a summary order of

borough council. It appeared that the English Housing Act of 1909 authorized the council, upon representation of a medical officer or "upon other information given," to the effect that a house used as a dwelling was unfit for that purpose, to make an order (called in the act a "closing order") prohibiting its further use. Having failed in persistent attempts to procure vacation of this order, Arlidge took an appeal to the Local Government Board. In due course the Board sent its inspector to the locality and the latter conducted a hearing, made an inspection and submitted a confidential report. Arlidge sought in vain to see the report or to learn its contents and applied in vain to be heard before the Board that was to decide his appeal. Without hearing him, without informing him of the case against him as set forth by the inspector, acting upon the basis of a secret report which Arlidge was given no opportunity to explain or to refute, the Board rejected the appeal. But Arlidge was an obsti

nate Briton of the good old litigious stock that made the common law. He knew that for centuries the English courts had insisted on the right of the subject to be heard in all proceedings involving his liberty or his fortune or his inheritance. If he did not know it, his lawyers knew that Coke had maintained successfully the jurisdiction of the King's Bench "to correct errors and misdemeanours extrajudiciall tending to *** oppression of the subject, so that no wrong or injury can be done but that this shall be reformed or punished in one court or other by due course of law." Accordingly he applied to the King's Bench Division for a writ of certiorari.

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After a hearing in the Divisional Court, the cause came before the Court of Appeal, which directed that the order of the Local Government Board dismissing Arlidge's appeal be quashed. The Lords Justices said that when Parliament provided for an appeal it meant such an appeal as was known to English institutions and hence one in accord with the principles of justice on which the common law proceeds, and they held it contrary to natural justice for the Local Government Board to dismiss the appeal without disclosing to the appellant the contents of the report upon which it was acting and without giving him an opportunity to be heard with respect thereto. This decision, I venture to think, would have been rendered as a matter of course by any English-speaking tribunal on earth a generation ago. In the United States, it would be demanded by the Federal Constitution, as more than one public service commission that sought to act on secret reports has had to learn. But this orthodox common-law decision was reversed by the House of Lords in 1915. Overruling the Court of Appeal, the highest tribunal of the British Empire held that there was no requirement that an administrative appellate tribunal comply with the ordinary decencies of a judicial appeal. It held that one who appealed to the Local Government Board from a closing order had no right to be heard, had no right to see

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the report of the inspector upon which the Board acted, and could do nothing more than seek to impress his views upon the inspector, unless the Board chose to permit him. If, so the House of Lords tells us, it is the ordinary procedure of the Board to act solely upon the secret reports of inspectors, no one can complain that his case was disposed of in accordance with that ordinary procedure, even though it be the ordinary procedure of Harun al Raschid or Baldwin of the Hatchet or the Ameer of Afghanistan. For we may as well recognize that the procedure which, as the House of Lords tells us, Parliament authorized in the Arlidge case, is a reversion to justice without law. It is a return to primitive justice. Whereas the nineteenth century relied on rules and called for a critical, rational, impersonal, mechanical procedure to put down the personality of the magistrate and insure before all things, that all men receive the same measure of justice, even if it were an abstract justice, the twentieth century is coming to rely on the personality of the magistrate, has scant respect for rules, is impatient of procedure and seeks a concrete justice in the cause in hand, no matter what happens to the next man in the next cause.

To understand the meaning of the Arlidge case, then, and of many similar causes in the United States, so far as the fifth and the fourteenth amendments and like provisions in State constitutions do not stand in the way, we must go back to the beginning of law or to Oriental justice which alone preserves the methods of the beginnings of law in the modern world.

"By the custom of the East," says Kipling, "any man or woman having a complaint to make, or an enemy against whom to be avenged, has the right of speaking face to face with the king at the daily public audience. * * ** The privilege of open speech is, of course, exercised at certain personal risk. The king may be pleased and raise the speaker to honor for that very bluntness of speech which three minutes later brings a too imitative

petitioner to the edge of the ever-ready blade." Such is Oriental justice today, and such was primitive justice. We have all read how Harun al Raschid walked the streets of his capital in disguise administering justice and relieving the tedium of royal existence at the same time. We all remember how the wrongdoer who told a clever story or interested the commander of the faithful went free or even took with him the royal purse, while the next who added dullness to no greater crime expiated the heinous offense of boring the commander of the faithful by the severest penalty of the law. If the justice administered by Henry II in person and the justice dispensed by St. Louis under the oak at Vincennes were much better, it was only because Henry II was by instinct a lawyer and Louis IX was a saint. As Nigger Jim said of the judgment of Solomon: "It all lies in de way Sollerman wuz raised." On the whole a conscientious, hard-working magistrate may do well, when he administers justice by the light of nature. But an easy going magistrate, seeking the line of least resistance, needs to be bolstered up by rules. And even Henry II, when the exigencies of politics pressed hard, was not above giving private audiences to particular litigants and putting out of court the learned clerk who suggested points on the other side. It is true this personal justice, sometimes good when dispensed by a strong man or a saint, indifferent when dispensed by a mediocre man of ordinary weakness, and intolerable when dispensed by an ignorant man, a lazy man or a corrupt man, can never be wholly eliminated. On the one hand even in the earliest and rudest justice the will of the judge is not exercised entirely as such, wholly free from the constraint of acknowledged rules of action or principles of decision. the other hand, it is equally true that in no legal system, however minute and detailed its body of rules, is justice administered wholly by rule, without any recourse to the will of the judge and his personal sense of what should

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